No ruling after brief hearing in Penn State suit

By Mark Scolforo

Monday, March 18, 2013

BELLEFONTE, Pa. (AP) -- Lawyers for Penn State and former assistant football coach Mike McQueary argued on Monday over whether a judge should dismiss his defamation and whistleblower lawsuit before trial, but the judge said after the half-hour hearing it would probably be late April before he rules.

Judge Thomas Gavin delved into whether statements made by then-university President Graham Spanier in support of two of his underlings after their 2011 arrests implicated McQueary.

McQueary told a grand jury that he reported to the administrators a 2001 encounter in which he saw retired Penn State assistant football coach Jerry Sandusky showering with a boy. The grand jury testimony was used to charge athletic director Tim Curley and vice president Gary Schultz with perjury and other offenses.

McQueary argues that Spanier made him appear untruthful when he put out a news release expressing support for Curley and Schultz and saying "the record will show that these charges are groundless and that they conducted themselves professionally and appropriately."

Penn State lawyer Nancy Conrad said the statement made no reference to McQueary, but Gavin noted the context was the grand jury report that cited McQueary's testimony.

"Nobody can figure out they're talking about Mr. McQueary?" Gavin asked. Conrad replied that "you would have to pull something out of the air."

Conrad also said Spanier was expressing an opinion, which would not be grounds for defamation.

McQueary's lawyer Elliot Strokoff noted that Spanier's statement endorsed a full investigation of the allegations against Sandusky, but did not do the same in relation to the charges against Curley and Schultz.

"If these men are being charged with something that's groundless, that can only mean Mr. McQueary is lying," Strokoff said.

He said the university has been paying legal defense costs for Curley and Schultz, but not for McQueary, which he argued was evidence McQueary had been marginalized.

McQueary testified last summer during Sandusky's three-week criminal trial, which resulted in a 45-count guilty verdict. Sandusky, 69, is serving a 30- to 60-year sentence and maintains his innocence.

Spanier awaits trial with Curley and Schultz after being charged late last year with the same set of charges. All three dispute the allegations. Spanier remains a faculty member, while Curley is on leave to serve out the last few months of his contract with Penn State. Schultz is retired.

McQueary did not attend the hearing Monday at the Centre County Courthouse in Bellefonte. His lawsuit remains in a preliminary stage.